Brief submitted to the Committee on Institutions, responsible for conducting a broad consultation on Bill 99
Brief submitted by
Jacques Parizeau to the Committee on Institutions,
responsible for conducting a broad consultation on
Bill 99, the Act respecting the exercise of the
fundamental rights and prerogatives of the
Québec people and the Québec State
February 9, 2000
Bill 99 is a defensive document that comes in the wake of the tabling by the federal government in the House of Commons of Bill C-20, which is also a defensive document elaborated in the wake of the narrow federalist victory in 1995. Given that Bill 99 is a response to Bill C-20, one could start by criticizing the federal draft legislation to explain the provisions in the Québec draft legislation. This is what many analysts have done, while surmising that the Québec initiative is somewhat automatic, inevitable and, in a word, banal.
However, Bill 99 warrants better treatment than that. To my knowledge, this is the first time that a legal document has codified the rights and prerogatives of the Québec State. Until recently, such rights and prerogatives were invariably defined within the framework of the British North America Act and reflected the division of fields of jurisdiction between the federal government and the provinces.
I believe that this is the first time that a legislative text seeks to define not the jurisdiction of the provinces but Québec’s jurisdiction and not Québec’s jurisdiction in relation to that of Canada, but Québec’s own jurisdiction.
Some of the rights expressed have an absolute meaning. Section 2 of the Act states that "[t]he Québec people alone has the right to decide the political regime and legal status of Québec." Other sections are affirmative in nature although limited by the existing political system. Section 7 states that "[t]he Québec State is free to adhere to any treaty, convention or international agreement in matters under its constitutional jurisdiction."
Of course, it might be said that Bill 99 offers nothing new. This is not true. While the ideas or principles it contains have often been expressed in the past by Québec’s political leaders and have occasionally been expressed in resolutions adopted by the National Assembly, this is the first time that the legitimacy of the Québec State and its powers have been clearly spelled out in a legislative text. From this standpoint, Bill 99 has the scope for Québec of a constitutional text.
Let us return briefly to section 2 mentioned earlier, which states that "[t]he Québec people alone has the right to decide [...]."
The 1982 Canadian Constitution does not recognize the existence of the Québec people. In its 1998 reference, the Supreme Court refuses to give an opinion on the existence of the Québec people. Bill 99 confirms its existence.
Bill C-20, following in the wake of the Supreme Court reference, seeks to establish guidelines and conditions pertaining to the question posed in a future referendum on sovereignty. Canada’s willingness to negotiate with a Québec seeking to leave Canada would depend on the House of Commons’ highly arbitrary assessment -- I will return to this matter later -- of the clarity of the referendum question and the value of the outcome. Bill 99 confirms principles. It does not dwell on procedural issues, except perhaps when it comes to establishing what constitutes a majority (50 percent plus one vote), although this is the most general rule of democracy and the application of any other rule would mean giving a minority vote more weight than a majority vote. This is indeed a question of principle.
All of the principles in Bill 99 are important. Acceptance of them gives rise to a certain vision of Québec, its institutions and the responsibilities that such institutions assume with respect to the Québec people. I understand that Bill 99 poses a dilemma for anyone who feels he is Canadian and also wishes to be a Quebecer. To accept the principles of Bill 99 and seek through the procedures in Bill C-20 to block their application is not very satisfactory, either intellectually or emotionally. Broadly speaking, Bill 99 defines an identity. Bill C-20 seeks to limit the possible applications of such an identity or to make them ineffective.
Québec’s accession to full sovereignty is fraught with complicated manoeuvres, so complicated that the public ultimately gets confused and loses interest. It is to clarify matters that the legal expression of simple principles is so important and enlightening, if we take the trouble to examine the question.
This of course, will inevitably draw us into the constitutional debate.
The 1867 Constitution makes no mention of the right of secession of a province. Québec, as it then was, entered Confederation as a result of a vote by its elected representatives, some of whom insistently demanded a referendum, which was rejected in the name of the supremacy of Parliament in the British political system. One could well imagine Québec leaving Canada the same way it joined it, as a result of a vote by its elected representatives, following an election campaign centred on this objective, as recently happened in Slovakia.
However, such was not the case. The principle has been established in Québec that this decision would be made by referendum. The Canadian Constitution does not impose the referendum to achieve sovereignty. The referendum is an invention of the Parti Québécois, because this method of proceeding seemed more democratic and demanding than a vote by Quebecers’ elected representatives.
The 1982 Constitution makes no mention of the right of secession either. This is striking. After all, a referendum was held in 1980. The sovereignists were undoubtedly defeated. One did not need to be a genius to conclude that with a 40% yes vote a new attempt at achieving sovereignty would arise sooner or later. However, the 1982 Constitution does not prohibit secession. It could have been authorized in principle, but accompanied by guidelines, e.g. the obligation to hold a referendum, guarantees in respect of minorities, and so on. There is none of that, indeed, nothing at all.
While the 1980 referendum focused on a mandate to negotiate sovereignty, the 1995 referendum centred on the attainment of sovereignty. A proposal for partnership was made to Canada and negotiations in this regard would have lasted not more than one year. In the event that the negotiations failed, the National Assembly would have decreed sovereignty.
The federalist victory in 1995 was so narrow that Ottawa decided to intervene directly in the referendum process, although not before it had consulted the Supreme Court. The greatest fear was of a unilateral declaration of sovereignty, which arose explicitly in 1995, although the terms of such a declaration were not put in motion. How can such a declaration be prevented in the future?
It is in Québec’s interest to convince Canadians that if the negotiations fail, the National Assembly will decree sovereignty. This is the best way to see the negotiations through and obtain a sound agreement with the rest of Canada.
It is in Canada’s interest to prohibit any possibility of a unilateral declaration of sovereignty in order to impose its conditions on the negotiations or ensure their failure.
The federal government asked the Supreme Court to decide the matter. Its first decision does not bode well for those who sought its opinion. What, in fact, is a unilateral declaration of independence? Here is what paragraph 86 of the reference has to say: "Rather, what is claimed by a right to secede ‘unilaterally’ is the right to effectuate secession without prior negotiations with the other provinces and the federal government."
For the past 30 years in Québec, no one has ever proposed "[effectuating] secession without prior negotiations." No one has ever made such a proposal, at least, not an elected official.
From that point, the conditions governing the referendum (a clear question, a clear outcome), negotiations (in good faith, legal framework for amending the Constitution) and more practical considerations (the debt, assets, and so on) are nothing more than procedural issues that would prevail in a constitutional State.
Ultimately, however, the question inevitably arises of what would happen if the negotiations failed. The Supreme Court does not reply. It cannot reply. It is worth quoting paragraph 155 of the reference:
Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.
I could not put it better myself.
Let us summarize. Bill 99 unequivocally establishes the right of the Québec people, as expressed by its National Assembly, to freely define its future. Bill C-20 allows the House of Commons to determine whether the question is clear should a referendum question be put to Quebecers. This question may not be a mandate to negotiate, as was the case in 1980. It may not refer to a proposal for partnership, as was the case in 1995. With the past thus erased, the House of Commons will rely on various criteria and opinions to ascertain the question’s clarity and, ultimately, on any other opinion that it deems relevant. This includes, one imagines, the sacred nature of Canadian unity. The same is true of the outcome of the vote. Ottawa will rely on various criteria, including any other factors and circumstances it deems relevant. The arbitrariness is striking. What penalty will apply if the federal government is dissatisfied? It will refuse to negotiate.
If we have properly understood the Supreme Court reference, such a refusal would actually bolster Québec’s moral position. However, beyond legalism lies the reality of the situation. Were Québec determined to leave Canada and were it prepared to negotiate, would Ottawa refuse to negotiate? Even the apportionment of the debt? Even freedom of movement between Ontario and the Maritimes? Even the transferability of pensions?
This is obviously not credible. In real life, following a referendum won by the sovereignists, in law, as expressed in Bill C-20, the ill humour of the rest of Canada would come to the fore and the financial interests of all and sundry would prevail. In the meantime, the amount that Québec should normally pay Canada following secession, i.e. its share of federal debt service, would simply be deferred.
Once again, is apparent the drawback of seeking in advance rules of law applicable to what is an unknown situation. The Canadian Constitution makes no mention of secession. Some people are attempting to make it say what it does not say, to make it positively loquacious in this regard. Québec is much wiser than Canada in focusing on principles and avoiding prejudging procedures.
While the Canadian Constitution makes no mention of the secession of a province, it is anything but silent about provincial borders. Since the 1878 and successive amendments, one principle remains, which can be simply stated thus: any change in a province’s borders must be approved by the province’s legislature.
This means that as long as Québec is a province, its borders may not be altered and that, after independence, any attempt in this respect would be deemed an act of aggression from the standpoint of international law.
Pierre Elliott Trudeau’s remark that if Canada can be broken up, Québec can also be broken up unquestionably reflects a political wish, but it is contradicted by provisions in the Canadian Constitution, including the 1982 version, of which Mr. Trudeau is the author.
To clarify the matter, the parliamentary committee on Québec’s accession to sovereignty established by Bill 150 in the wake of the Bélanger-Campeau Commission asked a group of five internationally renowned jurists, one of whom was then chairman of the UN International Law Commission, to give a legal opinion on the borders of a sovereign Québec. Here is an excerpt from their opinion:
Québec may not be compelled to relinquish against its will any portion whatsoever of its existing territory. Prior to independence, such an arbitrary amputation is excluded by the Canadian Constitution. After accession to sovereignty, it would be excluded by the basic demands of the stability of international borders that reflects the principle of respect for the territorial integrity of States. Between these two situations, there is no solution for continuity, no cracks in law, no point at which a territorial change could, lawfully, be imposed on Québec without its consent. [OUR TRANSLATION]
The Supreme Court is clearly embarrassed by the question of borders. Various groups in the West Island in Montréal are noisily demonstrating in favour of the partition of Québec’s territory. Native people exhibit on television an independent Québec with two-thirds of its land area amputated.
In fact, the Supreme Court only broaches the question of borders in two sections, one as bombastic as the other. In section 96, it states that " [...] Arguments were raised before us regarding boundary issues. [...] Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec. [...]" Section 139 states that: "We would not wish to leave this aspect of our answer to Question 2 without acknowledging the importance of the submissions made to us respecting the rights and concerns of aboriginal peoples in the event of a unilateral secession, as well as the appropriate means of defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples. [...]."
The awkwardness is obvious. The reference is replaced by a concern that is undoubtedly honourable but hardly legal in nature.
The allusion to the Native peoples in the northern regions is also clumsily broached. Under the James Bay and Northern Québec Agreement, as reflected in a federal and a Québec statute, section 2.1 makes it clear that:
[i]n consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Québec, the James Bay Crees and the Inuit of Québec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Québec, and Québec and Canada accept such surrender.
In fact, there is a misunderstanding. It is not the titles of the Indians or the Inuit in the North that create the problem but the aboriginal nations of the Saint Lawrence Valley, such as the Mohawks, who have never abandoned their land claims. However, that is another story.
Bill C-20 reflects the Supreme Court’s embarrassment. The only mention of borders appears in section 3(2), which states that:
No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province from Canada unless the Government of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.
These are all matters that the federal government says it will refuse to negotiate if it does not like the question.
On the issue of borders, section 8 of Bill 99 simply states that:
The territory of Québec and its boundaries cannot be altered except with the consent of the National Assembly and the Government.
The Government must ensure that the territorial integrity of Québec is maintained and respected.
Since Bill C-20 is intended to disrupt or even prevent a sovereignty referendum from succeeding, it was essential to discuss Bill 99 in a resolutely sovereignist perspective and rely on notions and documents that are part of the sovereignist question. However, since Bill 99 asserts principles and since these principles have, for a long time, been part of the common heritage of Québec political parties, they should normally receive the support of Quebecers and their representatives.
As noted earlier, the first of these principles is the existence of the Québec people: that minorities are numerous in Québec in no way alters the principle. After all, the presence in France of several million Muslims in no way alters the existence of the French people, of which Muslims are a part. It is not the homogeneity of its origins that characterizes a people, which is a community based on language, culture, certain values and a feeling of belonging. A people is not created in one day and the process of integration will always be easier among young people than older people. Certain gestures have historic importance as regards the creation of a people. This is true of Mr. Bourassa’s decision to have French declared the official language of Québec. Bill 101 was the next step.
Some people are still attached to the notion of the French-Canadian people, which has been largely misused. It is important to specify that in the seven provinces other than Québec, Ontario and New Brunswick, out of 12 million inhabitants not more than 80,000 still speak French in the home. Nearly half of Ontarians whose mother tongue is French no longer speak the language. Only 250,000 Acadians are hanging on and they regard themselves as a people, but certainly not as Quebecers.
The Native peoples are a separate case. They are divided into eleven "distinct nations" recognized as such by the National Assembly and their rights are receiving increasingly broad legal protection.
The second principle is that the Québec people may democratically determine its future through its institutions. The federal government is seeking through a form of trusteeship to oversee the functioning of Québec institutions, especially the National Assembly. It is not unthinkable that a broad consensus will arise among Quebecers to assert the freedom of their own political institutions and thus their own freedom.
The integrity of Québec’s territory is not a partisan theme. Successive Québec governments have not wavered on this question.
To conclude, while Bill 99 has been elaborated in response to the threats posed by Bill C-20, it is much broader in scope and it signifies much more than a simple incidental gesture. It is part of a long list of political and legal gestures, which, over the years, have conferred on the Québec National Assembly the authority and independence that it now possesses.